A biscuit by any other name

U.S. District Judge Max Cogburn of Charlotte is no flake when it comes to biscuits.

But Cogburn, who recently confessed to being something of a fast food connoisseur given all the time he spends commuting to and from court, might have had a little too much fun writing an order in a case pitting Bojangles’ against Hardee’s in a trademark infringement dispute over chicken biscuits.

Bojangles’ argues that Hardee’s crossed the line by using a name that was too similar to Bojangles’ trademarked “Cajun Chicken Filet Biscuit” and advertising the sandwich with the slogan “Gotta Wanna Needa Hava.”

“Much like the flavors of a good chicken biscuit, the issues in this case operate on multiple levels,” Cogburn observed in his July 19 order.

But at this point — before he “gets a bite” at further evidence — Cogburn said he could not conclude that Bojangles’ “is likely to prevail in this chicken biscuit suit.”

Cogburn said the trademark at issue applies specifically to the Bojangles’ biscuit, “not all Cajun spiced chicken that may exist, which, if it were not so, would certainly be news to the inhabitants of the Louisiana intrastate region of Acadiana.”

“It simply cannot be that a single company has a monopoly on putting a piece of Cajun spiced chicken between two sides of a biscuit,” he added.

Bojangles’ had sought a temporary restraining order and Cogburn said he was “no chicken when it comes to imposing such relief when it is necessary.” However, he denied the TRO, noting that Hardee’s had already agreed to stop selling the “offending biscuit” during the litigation and using “Gotta Wanna Needa Hava” in its advertising.

But he allowed Bojangles’ and Hardee’s to move forward with limited expedited discovery in preparation for a hearing on a preliminary injunction.

In the meantime, this reporter is going to prepare a “Gotta Wanna Needa Hava” request to expense some chicken biscuits for further research.